Canada's first female head of the high court

Canada and the United States share an inherited common law from England

June 28, 2001

By Tom Regan Staff writer of The Christian Science Monitor

Canadian Supreme Court Chief Justice Beverly McLachlin recently visited the Boston area to give the commencement speech at Bridgewater State College. Bridgewater has one of the most extensive Canadian Studies programs in the US. Judge McLachlin, the first woman chief justice and one of three women on the nine-member Canadian Supreme Court, took time to talk to the Monitor about the difference between the Canadian and United States judicial systems.

Can you explain the fundamental difference between the US and the Canadian judicial systems?

Maybe I can start by saying what we have in common. We share the common law which we inherited from England, although we have a civil code in Canada, as well. That's a major difference, which applies in Quebec for what we call the civil law, torts, and contracts....

Canada is a bijural country, as we call it. We have a common law and a civil code. You are a unijural country, for the most part, although you too have a civil code in Louisiana.

On a constitutional level there are a number of similarities and differences. Both countries have a bill of rights. You got yours very early on. We did not adopt a bill of rights until 1982, with the Charter of Rights and Freedoms.

In deciding these issues [of rights and freedoms] we look at other countries and how they have gone about it. We look at what the American approaches have been, how Americans have defined these rights. We have perhaps a slightly more eclectic approach toward human rights than you might in the US. US justices do not often cite foreign precedents. We would do that frequently.

Another difference is in the structure of our bill of rights. Ours is much more like the European bills of rights and charters, although not identical, than the American. And that is reflected in the fact that we have an idea of proportionality. We don't define our rights absolutely.

There isn't a hierarchy of rights like there is in the US?

That's right. In Canada, we set out the rights to which people are entitled. But we also say, right in the Constitution under Section 1, that the state can limit those rights. Those rights can be limited in so far as the state can show that this is reasonable and justifiable in a free and democratic society.

The way that justices are appointed is a very political process in the US. How is it done in Canada?

In Canada, appointments of superior court [appeal] justices are done generally by the cabinet, and appointments of chief justices and members of the Supreme Court are done by the prime minister. That is according to our Constitution. So that there is no equivalent of the full Senate review which you have in the Senate for federal appointments and which you have in the state Legislature for state appointments.

Perhaps, on the surface, it might seem more political because the prime minister or the cabinet can simply appoint whomever they like and no one can stop them, nor do they have to get the approval of others.

In fact, an argument can be made that it's not as political as it looks. Canada has worked hard in recent decades to promote the appointment of judges based on merit. You just cannot point to a person on the Supreme Court of Canada, I believe, who can be said to have been appointed because they belong to a political party, or have connections with politically oriented groups.

Also, we have a tradition of trying to get on the Supreme Court people from different regions of Canada.

We have the North American Free Trade Agreement and are looking to expand it to the rest of the hemisphere. That brings a lot of laws in each country into conflict. Do you think we will eventually have a hemispheric court in the same way we have a world court?

I don't know a lot about NAFTA. But the mechanism for settling those specific trade disputes has been panels of people who were nominated by both sides, who are experts in these areas. The mechanism chosen has been not the courts, although one can certainly envision a "super" court arising.

For a complete transcript of the interview, visit www.csmonitor.com.

(c) Copyright 2001. The Christian Science Monitor

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